Who’s charged with improving the CPS?

The recent comments by Sir Mark Rowley about the Crown Prosecution Service have sparked a row between the CPS and the Met, but beneath the name calling there is a fundamental problem with our justice system which needs to be resolved.

The accusation by the country’s most senior police officer is that the CPS cherry picks the best cases to prosecute and leave other victims without recourse to justice. The defence from the Director of Public Prosecutions is that the police are not passing enough cases to prosecutors for them to determine, and that is where the problem lies.

In understanding this particular spat, being carried out over Twitter, we need to recognise that there is indeed a problem. I would put forward at least one possible solution, and I think there are other, even easier changes to be made to the relationship between the police and prosecutors that can help to deliver justice.

There are significant backlogs in our Crown Courts and increasing the charge rates will certainly not make that particular problem any easier. The previous backlog and the current capacity issues are however a different problem to be addressed. The reality is that not enough cases are getting to court and one major contributor to that is that approach to charging decisions taken by the CPS.

Ultimately the problem comes down to mismatched measures of success. The police want to maximise the “positive outcomes” (more on this later) as a percentage of reported crime. In a nutshell that means more charges. The Crown Prosecution Service wants to maximise their conviction rate. The bigger the pool of cases that are charged, the harder it becomes to maintain a high conviction rate.

Of course it is quite right that prosecutors should only be taking on cases where there is a realistic probability of securing a conviction. That test however should be an objective one. Given the evidence available could the fictitious legal creation of the “reasonable person” find someone guilty. That is not the same as second guessing attitudes of juries or of being confident of securing a conviction.

Where the police have followed reasonable lines of enquiry and gathered evidence that points to a certain individual, it should be for the courts to determine guilt. The CPS clearly have a role to carry out the prosecution itself, but their gatekeeping function around charging decisions should be there to stop only the most egregious cases from being continued.

I don’t for a moment think that this is intentional. Excellent people working within the CPS want to secure convictions against bad people and they work hard to do so. However, what gets counted gets done, and the current measures of success, which may seem fine in isolation within one agency, do not fit well across the wider criminal justice system.

The police are not blameless in this respect. One of the areas that I keep a keen eye on in Thames Valley is the use of the various out of court disposals that exist. Often these are excellent options, but there remains a risk that because out of court disposals are considered a positive outcome that the system will opt for this easier option rather than putting a case to the CPS for a charging decision.

Undoubtedly the Director of Public Prosecutions is correct when he states that his organisation can only charge cases referred to it, and that they are dependent upon the police in this respect. We can however get into a circular argument here. CPS don’t charge the cases police officers think they should. Human nature means those same officers almost subconsciously raise the bar in future submissions. The CPS receive fewer referrals and in turn blame the police. 

So how do we break this cycle? Most simply the police and prosecutors need to align their aims. End the reign of conviction rates as the headline measure for the CPS and instead look at absolute numbers of successful prosecutions. This relates more closely to the expectations of victims and means there is no disincentive from putting forward the more marginal cases. 

There is however a case for much closer alignment between the two agencies. The CPS currently has virtually no accountability. It is governed by the DPP and only superintended at arms length by the Attorney General. Although operationally broken down into regions their remit is a national one. Those regions, unhelpful, do not match any other part of the system. Whilst we would all expect standards to be the same anywhere across England and Wales, the lack of localisation in priorities and success measures hampers the criminal justice system. A police force, under the legitimate remit of a Police & Crime Commissioner may seek to deal with a particular crime type that is considered to be especially prevalent. Yet there is no requirement for prosecutors to take this into account, so the efforts of police officers may not be mirrored when they try to bring cases to court. Indeed as the CPS region will not match the geography of the police force, there is a actually a disincentive to such innovation. In the case of Thames Valley, our CPS region also covers Hertfordshire and Bedfordshire. Why do things three different ways when the national imperative prevails? 

The solution then is to break up the CPS so that Chief Prosecutors match police force areas. Ensure independent scrutiny on behalf of the public which would govern the finances, strategy and targets for the organisation locally. Operational independence is easily secured as experience has shown to be the case in the relationship between Chief Constables and PCCs. Such an arrangement that give Police & Crime Commissioners a strengthened remit over the CPS would ensure operational independence, a separation of responsibilities and local accountability. 

It would also speed up progress towards the much needed data bubble between the two agencies. Frankly this is something that would be much more effectively and easily introduce nationally through legislation, but if that is not forthcoming I am a firm advocate of local arrangements to solve this huge challenge. 

To most members of the public I suspect it would come as a real surprise that the police and the CPS cannot freely share information between each other about crimes that have been investigated. Instead the business of redacting information has become an industry in its own right. There remains a case for redacting some information to protect innocent parties when evidence is presented in court or disclosed to defendants, but there can be no justification for the current practice of heavily redacting evidence at the earliest possible stage and preventing the free flow of information between police and prosecutors. 

Legislation could resolve this simply by creating a legitimate route for data sharing and set clear expectations for redaction standards. In the meantime, but aligning the accountability and priorities of both the police and the CPS could also bring about local data sharing agreements that help to speed up decision making and improve charge rates to deliver justice for victims.